Outline

The National
Consumer Credit Protection (Fees) Bill 2009 (Fees Bill), which
accompanies the National Consumer Credit Protection Bill 2009
(Credit Bill) and the National Consumer Credit Protection
(Transitional and Consequential Provisions) Bill 2009 (the
Transitional Bill), support the Commonwealth’s regulation of
consumer credit in Australia.

The Fees Bill
enables the imposition of fees, as taxes, for things done under the
Credit Bill and Transitional Bill, such as the lodgment of
documents, or inclusion of a document in, or inspection of, a
register maintained by the Australian Securities and Investments
Commission (ASIC).

Date of
effect : The Fees Bill commences at
the same time as section 3 of the National Consumer Credit Protection Bill
2009 .

Proposal
announced : The proposal to transfer
responsibility for regulating consumer credit to the Commonwealth
was announced by the Council of Australian Governments (COAG) on 26
March, 3 July and 2 October 2008.

Financial
impact : The Government has
provided $70.2 million over four years to implement the
decision of COAG as part of the 2008-09 Mid-Year
Economic and Fiscal Outlook. This Bill includes measures to
give effect to that transfer.

The funding will
support the establishment of a national licensing regime for
providers of credit and credit services, with ASIC as the sole
national regulator. It will also support the national
regulation of mortgages, margin lending, personal loans, credit
cards and pay day lending.

The funding will
be partially offset by revenue raised from fees required to be paid
by persons regulated by the national framework, payment of which
commences during the 2009­10 financial year. The amount
of revenue generated from these fees will depend, in part, on the
number and type of persons seeking to be
licensed.

Compliance cost
impact : The main compliance cost
impact arises in relation to persons who will be subject to the
licensing regime. This will primarily involve the initial
costs associated with applying for an Australian credit licence,
which include the payment of fees to lodge application
documentation with ASIC, annual compliance costs and costs of
external dispute resolution membership.

Further details in
relation to the compliance requirements associated with the
licensing of providers of credit and credit services are set out in
the Regulation Impact Statement accompanying the Credit
Bill.

Summary of regulation impact
statement

Regulation impact on
business

Impact : A regulation impact statement was
prepared for the Consumer Credit Protection Reform Package and is
set out in the explanatory memorandum to the Credit
Bill.

Outline of chapter

1.1
The National Consumer Credit Protection (Fees) Bill 2009 (Fees
Bill) allows for the imposition of fees for things done under the
National Consumer Credit Protection Bill 2009 (Credit Bill) and the
National Consumer Credit Protection (Transitional and Consequential
Provisions) Bill 2009 (Transitional Bill) such as the lodgment of
documents or the inclusion of a document in, or inspection of, a
register maintained by the Australian Securities and Investments
Commission (ASIC).

Context of new law

1.2
Section 55 of the Constitution provides, in part, that laws
imposing taxation shall deal only with imposing taxation, and any
provision dealing with any other matter shall not be
effective. To comply with this requirement, the Fees Bill,
which imposes fees for chargeable matters as a tax, is a separate
piece of legislation from the Credit Bill and the Transitional
Bill.

1.3
The approach taken in the Fees Bill is generally consistent with
the Corporations (Fees) Act
2001 which deals with the imposition of fees under the
Corporations Act
2001 .

1.4
The fees imposed under the Fees Bill are payable to the
Commonwealth (through ASIC) by the application of Part 5-4 of the
Credit Bill.

Summary of new law

1.5
The Fees Bill contains provisions relating to the:

â¢
imposition of fees for chargeable matters;

â¢
the ability to charge fees at different rates, for example
depending on the method used to lodge a document or the number of
representatives a person has; and

â¢
assignment of liability for payment a fee.

Detailed explanation of new
law

What is a chargeable
matter?

1.6
The key provision in the Fees Bill is the definition of the term
chargeable
matter . It is defined broadly to mean any of
the following:

â¢
the lodgment of a document under the Credit Bill and Transitional
Bill ;

â¢
the inclusion of a document in a register maintained under those
Bills;

â¢
the inspection or search of a register kept by, or a document in
the custody of, ASIC under those Bills;

â¢
the making available by ASIC, under those Bills, of information
(whether in the form of a document or otherwise);

â¢
the production by ASIC, under a subpoena, of such a register or
document;

â¢
the issuing of a document or of a copy of a document, the granting
of a licence, registration, consent or approval, or the doing of
any other act, under those Bills, by the Minister or ASIC;

â¢
the making of an inquiry of, or an application to, the Minister, or
ASIC, in relation to a matter arising under those Bills; and

â¢
the submission to ASIC of a document for examination by ASIC.

[Subsection
4(1)]

Example
1.1

JJF Pty Ltd lodges
an application for a licence to engage in credit activities with
ASIC in accordance with section 35 of the Credit
Bill.

The lodgment of an
application by JJF Pty Ltd is a chargeable matter, for which a fee
may be imposed.

Other definitions

1.7
A representative of a registered person is defined in section 4 of
the Transitional Bill. A representative of a licensee, or in
any other case, is defined in section 5 of the Credit Bill.
[Subsection
4(1)]

1.8
Other expressions used in this Bill that are defined in the Credit
Bill and the Transitional Bill have the same meanings as they have
in those Bills. [Subsection
4(2)]

Imposition of, and matters relating to amount
of, fees

1.9
Fees for chargeable matters may be prescribed in the regulations
[subsection
5(1)] . Any fees prescribed will
be imposed as a tax to ensure compliance with constitutional
requirements [subsection
5(2)] .

1.10
Two or more fees may be prescribed for the same chargeable
matter. [Subsection
5(3)]

1.11
Fees for chargeable matters may be prescribed in the regulations by
specifying an amount as the fee (not exceeding $10,000) or by
specifying a method of calculating the amount of the fee. The
$10,000 maximum applies separately to each fee imposed if more than
one fee is prescribed for the same chargeable matter.
[Subsection
6(1)]

1.12
A fee for a chargeable matter need not bear any relationship to the
cost of providing any service that forms part of, or is related to,
that matter. [Subsection
6(2)]

1.13
A fee, or the sum of fees, for a chargeable matter must not exceed
$50,000. [Subsection
6(3)]

Different fees in relation to chargeable
matter

The fee for
lodging an annual compliance certificate (as required by section 53
of the Credit Bill) electronically may be lower in comparison to
the fee imposed for lodging the same document in paper
form.

1.15
Regulations may also prescribe that fees can be charged at
different rates depending on the number of representatives that the
person who is liable for the fee has at a particular time.
[Section
8]

Example
1.3

This allows for
the amount of a fee that is to be imposed on a licensee to be
calculated based on the number of credit representatives they
authorise under sections 64 and 65 of the Credit
Bill.

Who is liable to pay the fee for a chargeable
matter, and time liability is incurred?

1.16
The person who is liable to pay the fee imposed for each chargeable
matter, and the time at which the liability arises, is described in
Table 1.1. [Section
9]

Table
1.1

Chargeable
matter (subsection 4(1))

Who is
liable

Time liability
arises

lodgment of a
document

person who lodges
the document

when the document
is lodged

inclusion of a
document in the register

person who
requests inclusion of the document in the register or if no
request, the person who lodges the document

when the request
for inclusion of the document in the register or if no request,
when the document is lodged

inspection or
search of a register or document kept by ASIC

person who
requests the information

when the request
is made

information made
available by ASIC

person who
requests the information

when the request
is made

production of
register or document by ASIC under a subpoena

person who filed
the subpoena

when the subpoena
is served on ASIC

issuing a
document or copy, granting a licence, consent or approval, or doing
any other act by the Minister or ASIC

person
requesting issue of the document or copy, the grant of the licence,
consent or approval, or any other act. If there is no
request, the person for whose benefit the act is
done

when the
request is made, or if there is no request, when the act is
done

Chargeable
matter (subsection 4(1))

Who is
liable

Time liability
arises

making an inquiry
of, or application to, ASIC or the Minister

person who makes
the inquiry or application

when the inquiry
or application is made

submitting a
document to ASIC for examination

person submitting
the document

when the document
is submitted

Regulations

The Fees Bill
provides that the Governor-General may make regulations for the
purposes of sections 5 to 8. [Section 10]